Questions and answers regarding Court rulings on King County’s clearing limits in the Critical Areas OrdinanceMarch 9, 2009 Q: What did the Court of Appeals decide?
A: On July 7, 2008, the Court of Appeals issued a decision concerning one provision of King County's Clearing and Grading Code, which was enacted as part of the Critical Areas Ordinance. The Court ruled that the limits on the amount of clearing allowed on rural area zoned property were inconsistent with a state law that sets standards and limits on the taxes, fees, and charges a county may impose on development. The Court of Appeals held that the clearing limits amount to an indirect charge, which the statute requires to be proportional to the impacts of a particular development. Since King County's clearing limits were not determined based on an analysis of the impacts associated with clearing a particular site, the Court of Appeals held they were invalid under the statute. On August 4, 2008, King County asked the Washington Supreme Court to review the Court of Appeals decision.
Q: What did the Washington Supreme Court decide?
A: The Washington Supreme Court decided not to hear King County's appeal of the Court of Appeals decision.
Q: Did the Courts strike down King County's Critical Areas Ordinance?
A: No. The only issue before the Courts was whether King County's requirements to limit clearing violated the state law relating to how taxes, fees, and charges on development are to be imposed.
Q: What does this decision mean for me if I have an application or code enforcement case before King County?
A: King County's Department of Development and Environmental Services will no longer enforce the provisions of the Clearing and Grading Code, K.C.C. 16.82.150 and 16.82.152 (PDF*, 398KB), that require rural area zoned property owners to limit the amount of clearing on their property. These two code sections will no longer be considered during the review of existing or future permit applications or in existing or future code enforcement complaints.
Q: Do I still need to apply for a clearing permit?
A: Yes, if you are proposing to clear beyond the thresholds allowed under King County's regulations or in areas where clearing always requires a permit. Generally, clearing more than a cumulative total of seven thousand square feet requires a clearing permit. Permits to clear invasive vegetation, such as blackberries, and noxious weeds can be obtained online at no cost. See www.kingcounty.gov/property/permits/info/PermitTypes/landuse/blackberry.aspx. For information on how to apply for other types of clearing permits, see www.kingcounty.gov/property/permits/info/PermitTypes/landuse/ClearingGrading.aspx.
Q: Are there other regulations that may apply to proposed clearing?
A: Yes. Clearing in many critical areas and their buffers is generally not allowed or allowed only in limited circumstances. If any clearing is allowed, a permit is almost always required. King County's Stormwater regulations also may apply. More than 7,000 square feet of land disturbing activity, which includes most clearing, also requires drainage review and may require measures to ensure that there are no stormwater impacts that result from the clearing.
Q: Did the Courts say that King County's regulations were not based on science?
A: No. In fact, the Court of Appeals recognized that King County's regulations are well documented and that they demonstrate a connection between loss of forest cover and impacts to the environment. However, the Court of Appeals found that this was not enough under the state law at issue. The Court of Appeals found that the state law requires a more individualized evaluation based on the impacts that a particular development will have.
Q: Why does King County care about the amount of forest cover?
A: Scientific studies show that as the total amount of forest cover is reduced in a basin, there is increased risk of flooding and other adverse impacts to streams and wetlands in the basin. This is true even if the clearing takes place far away from the stream or wetland. If allowed to do the job, nature is the most effective, and also the most cost effective, way to manage stormwater. Forest cover is also important for a variety of wildlife species and important for recharging groundwater, a key source of drinking water for rural property owners.
Q: Does this decision affect stream or wetland buffers or other county regulations?
A: No. King County requires that the buffer around a stream or wetland be left alone. Those regulations were not affected by the Court of Appeals decision. King County's zoning and stormwater regulations also remain in effect.
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